concurring in the judgment:
Judge Mikva’s opinion holds that the Park Service has not adequately justified the prohibition of sleeping by demonstrators granted permits to pitch sixty tents at symbolic campsites and to maintain a round-the-clock presence at those sites.1 While I concur in the court’s judgment, I find the case close and difficult.2 For the *38reasons indicated below, I share Judge Edwards’ concern that this case “has a high potential to produce ‘bad law.’ ”3
That potential is revealed most conspicuously, I believe, in the separate dissenting opinion of Judge Scalia. His opinion would deny full free speech protection to any expression of ideas or feelings through symbols other than words. According to Judge Scalia, only “spoken and written thought” fall within the Constitution’s core guarantee against government regulation “abridging the freedom of speech, or of the press.” 4 Others have elegantly stated why Judge Scalia’s narrow reading of the safeguard placed first in the Bill of Rights, his separation of language from other expressive symbols, will not do. I note such commentary5 in this statement and, to avoid lengthening the packet of opinions, quote here only these relevant lines: “The Constitution protects freedom of ‘speech,’ which commonly connotes words orally communicated. But it would be surprising if those who poured tea into the sea and who refused to buy stamps did not recognize that ideas are communicated, disagreements expressed, protests made other than by words of mouth or pen.” Henkin, supra note 5, at 79. Under the First Amendment the relevant inquiry should be “whether meaningful symbols ... are being employed by one who wishes to communicate to others”; the extent of protection should not depend upon whether words, pictures, emblems, or other comprehensible means of conveying a message are employed. Nimmer, supra note 4, at 61.
Numerous cases can be conceived to illustrate the arbitrary, less-than-fully baked flavor of Judge Scalia’s theory. For economy, I indicate one category of examples in which his attempt at tight, tidy analysis does not yield sensible results. Assume a municipality enacts an antilittering ordinance that prohibits distribution of unsolicited materials to passersby in streets or other public places. This ordinance is passed for health, safety, and aesthetic reasons. A person hands out leaflets on a street corner; the leaflets contain words conveying a political message. Under Judge Scalia’s approach, one must balance the government’s interests in clean streets against the leafleter’s First Amendment interest because the antilittering law, though aimed at the non-communicative aspect of the activity, impinges on the distribution of printed words, core “speech” for Judge Scalia.
A second person, on the same street corner, distributes small paper American flags (on Memorial Day), red poppies (on Veterans’ Day), yellow ribbons (while American hostages are being held in Iran), green ribbons (while young blacks are being murdered in Atlanta), or peanuts or jelly beans (during a heated presidential campaign). The law as applied to this distributor, according to Judge Scalia, would attract only minimal scrutiny because it is aimed at the non-communicative collateral consequences of nonverbal, albeit expressive, symbols, which are not “speech” under Judge Scalia’s theory. Judge Scalia would, therefore, pre*39sumably uphold application of the ordinance against this distributor because it would meet the minimal rationality equal protection standard.
The second distributor’s symbols, however, convey as strong a message as spoken or printed words. That the two distributors might be treated differently under Judge Scalia’s theory strays far from “common and common-sense understanding.” Scalia Opinion at 622. That the two might be treated equally under Judge Scalia’s theory if the second distributor prints a word — any word — on the object distributed, demonstrates the ultimately untenable character of the attempted distinction.
I am troubled too by an idea tried out tentatively in Judge Wilkey’s dissenting opinion relating to the appropriate classification of the “free speech” interest asserted. A workable approach to expressive symbols or conduct, Judge Wilkey’s dissent suggests, might distinguish “traditional communicative activit[y]” (marching and picketing are so described), from non-traditional, even if equally communicative, activity (wearing armbands and displaying symbolic flags are cited in this category): all conduct would count as “speech” sheltered from “proscription specifically designed to suppress expressive connotation”; only “traditional activities” would “qualify for purposes of avoiding a general prohibition not directed at communicative content.”6 Case law does not so compartmentalize conduct that has no purpose other than expression,7 and I do not grasp the sense of, or the need for, the suggested two-level approach.8 Why should marching attract full “free speech” protection while armband-wearing attracts less complete insulation; why should courts stamp speaking with one’s feet “traditional” but flying a symbolic flag non-traditional?9
At the same time, I hesitate, more than Judge Mikva and Judge Edwards do, to treat the on-site sleep of a round-the-clock demonstrator as indistinguishable for the purpose at hand from the soap box speech, leaflet distribution, protest march, armband or flag display. CCNV’s sleep may speak “poignantly” to passersby, but it is not designed “100%” as expression.10 It has a more commonly recognized aspect;11 sleep *40enables the round-the-clock demonstrator to face the next day without exhaustion. “Speech plus” is a label that has been misused in other contexts12 but CCNV’s case may be an instance in which the description is appropriate.
Still, the personal, non-communicative aspect of sleeping in symbolic tents at a demonstration site bears a close, functional relationship to an activity that is commonly comprehended as “free speech”: sleeping in the tents, rather than simply standing or sitting down in them, allows the demonstrator to sustain his or her protest without stopping short of the officially-granted round-the-clock permission. For me that linkage, while it does not mean CCNV’s request should attract automatic approval, suffices to require a genuine effort to balance the demonstrators’ interests against other concerns for which the government bears responsibility.
I am mindful of the Park Service argument that it has gone beyond the “free speech” requirement in permitting as many round-the-clock demonstrators as CCNV requested and as many tents, and that judgment against it would penalize the Service for its generosity. Nonetheless, in shaping rules of access to a public forum for demonstrations of ideas and protests13 the Service, even when it has generously allocated time and space, must steer clear of arbitrary or incoherent regulation. Judge Mikva and Judge Edwards have suggested that controls tighter than those now in effect might be put in place by the Park Service without affront to the First Amendment.14 They reason, however, and *41I agree, that it is not a rational rule of order to forbid sleeping while permitting tenting, lying down, and maintaining a twenty-four hour presence.
In sum, in reviewing regulation of the time, place, and manner of expressive activity, I believe courts should draw no bright line between verbal speech and other comprehensible symbols of expression, or between “traditional communicative activity]” 15 and non-traditional modes of expression. While a more rational line perhaps might be drawn distinguishing unambiguously communicative activity, traditional or not, from activity that reflects a mixture of motives, I would not draw that line in this case. The non-communicative component of the mix reflected in CCNV’s request for permission to sleep at the authorized symbolic campsite facilitates expression and should therefore attract ordering rules that are sensible, coherent, and sensitive to the speech interest involved. In my view, the Park Service determination does not satisfy that measurement. I therefore concur in the court’s judgment.
. Mikva Opinion at 587, 596.
. Judge Mikva effectively describes CCNV’s position: homeless people who sleep as part of their round-the-clock protest against official neglect convey a message at least as intelligibly as many marchers under banners or speakers from soap boxes convey points of view; the CCNV demonstrators show by their presence, awake and sleeping, that they have nowhere to live. However, Judge Mikva rejects the terminal point of CCNV’s argument: the homeless speak when they sleep, CCNV maintains, the nonhomeless generally do not; because the homeless are different from demonstrators for whom sleep facilitates, but does not also or as clearly embody expression, decision of CCNV’s appeal is appropriately tied to their special case. Judge Mikva declines to rest his decision on this ground “because it would require the government to draw distinctions ... depending on the subject matter or content of [a group’s] message, and its alleged relationship to sleep, something the first amendment is designed to prevent.” Id at 594. Most members of the court concur in that view. See Dissenting Opinion of Judge Wilkey at 612 [hereinafter referred to as Wilkey Opinion]. Judge Mikva therefore proceeds, as Judge Wilkey observes, id, from a determination that sleeping is indeed expressive in CCNV’s case to the conclusion that sleeping must be allowed to “all those who wish to engage in [it] as part of their demonstration and have been granted renewable permits to demonstrate on a twenty-four hour basis on sites at which they have also *38been allowed to erect temporary symbolic structures.” Mikva Opinion at 596. The passage from the initial determination that CCNV’s sleep is expression to the conclusion that all round-the-clock demonstrators with tents may sleep in them is not a smooth one.
. Edwards Opinion at 600.
. But see Nimmer, Symbolic Speech, 21 U.C.L. A.L.Rev. 29, 33-34 (1973):
It might be argued that “speech” within the meaning of the first amendment should encompass only those particular expressions in which the symbols employed consist of conventional words.... Most would agree that it is the freedom to express ideas and feelings, not merely the freedom to engage in verbal locutions, which constitutes the core meaning of the first amendment. Holmes’ “free trade in ideas” may not be reduced to mere trade in words. It is the ideas expressed, and not just a particular form of expression, that must be protected if the underlying first amendment values are to be realized.
(Emphasis in original; footnotes omitted.).
.See particularly Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct. Rev. 1; Henkin, The Supreme Court, 1967 Term —Foreword: On Drawing Lines, 82 Harv.L.Rev. 63, 76-82 (1968).
. Wilkey Opinion at nn. 33 & 34 and accompanying text; cf. Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L.Rev. 1482, 1488-89 (1975).
. See Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969) (students wearing black armbands to publicize their objections to the Vietnam war were involved in the exercise of “direct, primary First Amendment rights akin to ‘pure speech’ ”); cf. Garner v. Louisiana, 368 U.S. 157, 201, 82 S.Ct. 248, 271, 7 L.Ed.2d 207 (1961) (Harlan, J., concurring in the judgment) (lunch counter sit-in to protest segregation “is as much a part of the ‘free trade in ideas,’ ... as is verbal expression”).
. See generally Henkin, supra note 5, at 76-82.
. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), holding unconstitutional a California prohibition on displaying a red flag as a means of political expression, was among the early cases acknowledging that “speech” may be nonverbal. Nine years later, the Court declared peaceful picketing to publicize a labor dispute constitutionally protected free speech. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). The Court has not been consistent in its descriptions of protest marches as a form of “speech.” Compare Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963) (march to State House reflected “an exercise of ... basic constitutional rights in their most pristine and classic form”), with Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487 (1965) (picketing and parading described as “conduct mixed with speech”). See generally Kalven, supra note 5.
. Cf. Ely, supra note 6, at 1495.
CCNV, in its permit request, acknowledged a non-communicative, “living accommodation” facet of the sleeping it proposed. Referring to CCNV’s experience the preceding year, the request stated: “[A]bsent a survival-related reason for being in Lafayette Park — something such as a meal or the chance to sleep in relative warmth — they [the homeless] did not and would not come.” Appellants’ Complaint, Exhibit A at 3.
. The Court said of the flag display at issue in Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), intended to protest the invasion of Cambodia and the killings at Kent State University: “[I]t would have been difficult for the great majority of citizens to *40miss the drift of [Spence’s] point at the time that he made it.” Id. at 410, 94 S.Ct. at 2730. The sleeping demonstrators’ message may be less quickly perceived. Passersby might observe: (1) they are certainly sleeping; (2) they may be doing so to facilitate their participation in the protest; (3) in addition to facilitating their expression, they may be sleeping as an expressive part of their protest. Sleeping, in other words, is not as securely or unambiguously seen, as is wearing an armband, displaying a flag, or marching, as a “common comprehensible form of expression.” See Henkin, supra note 5, at 80.
. See Kalven, supra note 5, at 12, 23, 26-27 (labeling a public address or a pamphlet “speech pure” and a protest march “speech plus” lacks an “intelligible rationale”).
Supreme Court opinions have described picketing and litigation, inter alia, as “speech plus.” See Brandenburg v. Ohio, 395 U.S. 444, 455, 89 S.Ct. 1827, 1833, 23 L.Ed.2d 430 (1969) (Douglas, J., concurring) (“Picketing ... is ‘free speech plus.’ ... That means it can be regulated when it comes to the ‘plus’ or ‘action’ side of the protest.”); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 326, 88 S.Ct. 1601, 1612, 20 L.Ed.2d 603 (1968) (Douglas, J., concurring) (“Picketing is free speech plus, the plus being physical activity that may implicate traffic and related matters.”) (emphasis in original); Communist Party v. Subversive Activities Control Bd., 361 U.S. 1, 173, 81 S.Ct. 1357, 1450, 6 L.Ed.2d 625 (1961) (Douglas, J., dissenting) (picketing); NAACP v. Button, 371 U.S. 415, 455, 83 S.Ct. 328, 349, 9 L.Ed.2d 405 (1963) (Harlan, J., dissenting) (“[L]itigation, whether or not associated with the attempt to vindicate constitutional rights, is conduct; it is speech plus.”) (emphasis in original). But cf. Kalven, supra, at 23 (“[A]ll speech is necessarily ‘speech plus.’ If it is oral, it is noise and may interrupt someone else; if it is written, it may be litter.”).
I use the term “speech plus” here not to describe expressive activity “with collateral consequences that invite[ ] regulation,” Kalven, supra, at 23, but to refer to conduct designed both to speak and to accomplish a more readily or commonly comprehended non-communicative purpose.
. See Kalven, supra note 5, at 12 (“[G]enerosity and empathy with which [the] facilities [of a public forum] are made available is an index of freedom.... [W]hat is required is in effect a set of Robert’s Rules of Order for the new uses of the public forum, albeit the designing of such rules poses a problem of formidable practical difficulty.”).
. Judge Mikva observes that the Park Service may “limit the number of tents, the size of tents or campsites, and the number of persons allowed to sleep.” It may “set aside certain times when no demonstrations are allowed,” and, “possibly, it may be able to set aside some ... areas ... at which round-the-clock demonstrations are never compatible.” Mikva Opinion at 599. Judge Edwards adds that “[g]overnment officials also may limit or prevent the storage of personal belongings, and perhaps prevent any individual from sleeping in the parks beyond a specified, successive number of hours or days.” Edwards Opinion at 604. Judge Wilkey gives way to hyperbole when he suggests that these opinions exclude reasonable time, place, and manner regulation and would permit demonstrators to engage in *41any activity they believe “will facilitate or improve the [demonstration].” See Wilkey Opinion at 613.
. Wilkey Opinion at 613.